Right to counsel

Generally

Indigent custodial parents have a right to counsel in dependency proceedings upon request. Ark. Code Ann. § 9-35-311(e)(1)(B) (“In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian: (i) The parent or custodian from whom custody was removed shall have the right to be appointed counsel”).

As to noncustodial parents, appointment is discretionary if certain requirements are met.  The court may appoint counsel for indigent noncustodial parents who request counsel if the court makes a finding that the “parent has demonstrated a significant custodial relationship with the juvenile.” § 9-35-311(e)(1)(B)(ii) (emphasis added).  The determination about the significance of a custodial relationship is made at the first appearance of the parent. Id. 

As to indigent  putative parents, appointment is also discretionary upon request if “the putative parent has demonstrated significant contact with the juvenile and the court finds the rights of the putative parent have attached.” Id.  Again, the determination is made at the first appearance of the putative parent in the matter. Id.  But counsel cannot be appointed if any of those things are not true — if the parent doesn’t demonstrate significant contact, the court finds that the parent’s rights have not attached, or the parent fails to appear.

Notice of the right to counsel

Because there is a request requirement, notice about the right to counsel becomes especially important.  In terms of notification, the court must advise parents, putative parents, and custodians about “the right to counsel and the right to appointed counsel, “if eligible”  “in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court[.]” Id. at (e)(1)(D)(i).

Right to counsel on appeal

The right to counsel arguably extends to appeals.  Previously, the statutory language specified that the right to counsel extended to “all stages”, and such language was relied upon by the court in Linker-Flores v. Ark. Dep’t of Human Services to conclude that the right to counsel applies in appeals. 194 S.W.3d 739, 745–46 (Ark. 2004).  Although the “all stages” language was later removed as to parents, it appears that parents still enjoy the right to counsel on appeal, since the court rule governing dependency matters appeals contains instructions for attorneys seeking to file no-merits briefs, which would not be necessary if the parents did not have a right. See Ark. R. Sup. Ct. Rule 6-9(j)(1) (“After studying the record and researching the law, if appellant’s counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit brief and move to withdraw.”).

Standard on appeal: Harmless error

When considering the denial of counsel on appeal for abuse/neglect matters, Arkansas courts tend to apply the harmless error standard.  In Buck v. Arkansas Department of Human Services, 548 S.W.3d 231 (2018), the Court of Appeals held that the trial court’s failure to appoint counsel for a father in a dependency proceeding was not harmless error notwithstanding the fact that the father was appointed counsel for the termination proceeding.  The court noted that the trial judge made a dependency-neglect finding based primarily on stipulations by the mother, and the father also did not have the benefit of counsel to monitor implementation plans.  But more generally, the court spoke about the many things an attorney does in general to assist parents in dependency matters. See also Clark v. Ark. Dep’t of Human Servs., 206 S.W.3d 899 (Ark. Ct. App. 2005).[1]

In Jefferson v. Arkansas Department of Human Services, 158 S.W.3d 129, 136 (Ark. 2005), the court noted appellant’s alleged waiver of counsel at a dependency-neglect hearing (without examining the legitimacy of that waiver) but observed that her appeal of the dependency adjudication was not timely, and therefore the court could not fully address any errors (including the alleged denial of counsel).  However, it stated that it would determine “whether the failure to provide counsel to appellant during the adjudication proceeding permeated or tainted the remainder of appellant’s case so as to deprive appellant of fundamental fairness in subsequent proceedings.”  It then concluded that the lack of counsel did not rise to this level because the appellant had been appointed counsel for the remainder of the proceedings after the adjudication phase.  However, it went on to state:

Although the issue raised by appellant is procedurally barred, we note that it implicates important safeguards imposed with respect to a termination of parental-rights proceeding.  For that reason, and out of an abundance of caution, we have decided to give no consideration to the testimony given by appellant at the adjudication hearing because such testimony was given without legal representation or a proper waiver thereof.

Id. at 658.

 _______________________________________________________________

[1] In evaluating the petitioner’s argument that he should have been provided counsel in a dependency-neglect proceeding at the adjudication stage pursuant to Ark. Code Ann. § 9-27-316, where he was adjudicated a child-abuser and restrained from entering the home in which his children lived, the court first inexplicably began examining due process caselaw, discussing the balancing tests articulated in Lassiter and Mathews v. Eldridge, and noted that it is a case-by-case analysis under federal law.  But the court then rested its decision solely on statutory interpretation in reasoning, “Because the children have been effectively taken away from him although they remained in the home, appellant has a right to counsel under Ark. Code Ann. § 9-27-316(h).”  The court held that the failure to appoint counsel in this case was not harmless because “counsel could have cross-examined the witnesses. The dependency-neglect adjudication is the first step to termination of parental rights. The DHS safety plan bars appellant from the house where his children live. The consequence of the adjudication is that appellant is now a registered child abuser.”

Note: The right to counsel for parents in dependency-neglect matters was located at Ark. Code Ann. § 9-27-316 until 2025, at which point the Arkansas legislature enacted SB 320, moving relevant provisions to § 9-35-311.